Counterplay

25

September

“The People call Zachary Stavros.” Guma looked to the side door panel through which the young man entered. He smiled in encouragement as his witness passed looking pale and shaky.

Sitting to Guma’s left, Karp watched his old friend, searching for signs of how he was holding up. The month preceding the trial had been particularly grueling as they prepared, searching for weaknesses, plugging gaps, working on witness prep and preparing their opening and closing statements.

After one particularly long weekend, Karp asked Guma how he was feeling. He said it lightly but was concerned as the circles under his friend’s eyes seemed more pronounced every week, and at other times, he didn’t seem to be quite in the same room, though he was well prepared for the trial, his opening remarks simple, to the point, and powerful.

Don’t worry, I’m not going to kick off during my opening or fall asleep, unless it’s during your closing, Guma had replied with a smile.

Hey, I didn’t say anything about your obtuse opening, Karp laughed. And to be honest, I’m probably more likely to keel over than you. It’s been a long month.

Master of the understatement, Karp thought. Hell, it’s been a long year, although maybe the worst of it is finally over. Ever since the debacle at Aspen, in which eight law enforcement officers had been killed and a half dozen others seriously wounded, there’d been no sign of Kane. The official view, according to a briefing he got from Ellis, was that he’d died in the blast.

Crime scene technicians had found very little in the way of identifiable human remains, particularly from inside the house. Bits and pieces, blood splatters, that’s about it, Ellis had said. However, a single Gucci loafer with enough blood inside to be tested had turned out to be a positive match for a blood sample taken from Kane when he was incarcerated.

It was better than nothing, but Karp would have preferred a body-something along the lines of the Old West days when the local sheriff would pose next to the coffins and corpses of deceased outlaws. Not usually the bloodthirsty type, in Kane’s case, he’d been willing to make an exception.

The Saudi embassy had registered a complaint with the U.S. Department of State alleging that “law enforcement cowboys had, through their precipitate actions, negated the possibility of a peaceful resolution to the hostage situation, resulting in the tragic deaths of innocent members of the royal family.” The State Department, according to Jaxon who had a friend at State, had essentialy told the Saudis to “stick their complaint where the sun don’t shine” considering that the “innocent” royal family had been harboring armed terrorists and a fugitive on the FBI’s “Ten Most Wanted” list.

Still, even the assumed death of Kane did not necessarily mean the long year was over. There was a chance that whatever plan he was working on was still in place. After all, Azzam had last been seen in New York, running away from a bombing at Brighton Beach, and there’d been no report of her having been in Aspen during the siege. Jaxon had told him that his agency, the FBI, and Homeland Security were going forward as if there were still a threat against the United Nations during Russian President Putin’s visit toward the end of the week.

When Karp told Jaxon that his source, “the same one that gave me the photograph of Azzam,” believed that the second woman accompanying Azzam was in fact a Russian agent named Nadya Malovo, the FBI agent grimaced. “Christ, that’s all we need,” he said, “Russians plotting with Islamic terrorists to commit crimes on U.S. soil. A little tough to believe considering the enormous ramifications, even for the former KGB, but not without merit either. Without going into areas that I’m not allowed to discuss, the concept that the Russians are looking for reasons to remain in Chechnya has been discussed in the highest circles.”

He’d asked Karp to keep the information under his hat for the time being, which he was only too happy to do. As far as he was concerned, with the exception of his friend Jaxon, all the spies, and agents, and terrorists were welcome to take their games out of Manhattan permanently.

Especially as there were plenty of other distractions that week, both in Manhattan and at home. As previously announced, the Pope would be attending the installment and celebratory mass for Cardinal Nicolas King as the new Archbishop of New York on Saturday. Even though the Vatican’s public relations office had gone to great lengths to note that the Pope’s visit would be short and limited to the events at St. Patrick’s, an estimated one hundred thousand more visitors than usual had deluged Manhattan hoping for a glimpse of the pontiff or to simply be in the same city.

Police Chief Denton and Jaxon had both assured Karp that security for the Pope’s visit would be every bit as tight as it would be for Putin’s speech the following Friday. “But the ‘chatter,’ at least according to Ellis, still focuses on the United Nations theory,” Jaxon said. “And if the Chechen nationalists are trying to make a point about Russian intervention in their country, attacking the Pope would seem counterproductive. An attack on the United Nations wouldn’t exactly be a public relations coup, especially if a lot of innocent people were killed. But at least the attack would be seen as political and might even garner some twisted understanding by people of the sort who sympathized with the Irish Republican Army’s tactics as the only way for so-called freedom fighters to defeat a military power. Not to mention, there are a few people in this country who wouldn’t be too terribly upset if the United Nations was bombed.”

“Either way,” Denton added. “We’ll be ready.”

Security measures were in place, or so it was believed, that assured Karp that everything that could be done had been done. Good thing, too, as he planned to attend the event at St. Patrick’s with his family, including Marlene, the twins, and Lucy, who’d returned to New York with her mother after Aspen, and Ned, who’d flown in to JFK that morning.

With the election only two months away, Murrow was working himself into a tizzy trying to line up speaking engagements and, as Guma and Newbury liked to tease, “baby- and ass-kissing events.” But Murrow was adamant that Karp needed to get “face time” on the television and in the newspapers.

The polls still showed Rachman running a distant second, though she continued to outspend Karp four to one in advertising and it was reflected in small gains she’d made, especially in neighborhoods where being seen on television was more important than what you said. However, the nearer the November election, the more desperate Rachman was becoming; her attacks were growing ever more virulent.

While touting her credentials from her time as head of the Sex Crimes Bureau, she did all she could to portray Karp as “soft on sexual predators.” She’d even managed to dredge up old allegations that Karp was a closet racist. And perhaps, she hinted, even anti-Catholic, as evidenced by his “personal investment” in the case against Archbishop Fey and other local parish priests who were part of the “Kane conspiracies.” She was smart enough not to come right out and say it was because he was a Jew-that wouldn’t have played well in New York-but left the idea swinging in the wind for the anti-Semitic crowd to grasp onto.

As Zachary Stavros was sworn in, Karp looked over at Emil Stavros, who actually caught his eye and smiled. The banker was dressed in a gray conservative two-thousand-dollar suit, his wavy pewter hair combed back in perfect rows from his tanned face. He oozed confidence and looked immaculate, like he just walked out of the dry cleaner’s.

I’m sure we look like chewed-up dog toys by comparison, Karp thought. Of course, Stavros was probably well rested and well fed, having been released to his home with a monitoring bracelet in early August.

The defense had made a motion to dismiss the indictment based on the proffered testimony of Dante Coletta. Skirting a fine line with Judge Lussman’s admonition to watch the pandering to the press, as well as attempts to poison the jury pool, Anderson had worded his argument in such a way as to infer that the DAO was not acting on Coletta’s story due to politics.

The judge dismissed the motion with a meaningful glare at Anderson. But the lawyer had not been cowed.

Barring the outright dismissal of the charges, Anderson argued, at the very least, his client should be allowed out on bail. “The unfortunate incident that led to his present state of incarceration was due to a momentary lapse in judgment,” he said. “Imagine, if you will, the shock of a body being discovered in your backyard when you had no idea it was there. I would remind Your Honor of his own words that Mr. Stavros is still presumed to be innocent and viewed in that light, one can understand why he got in a car and told his driver-a man who did know the truth-to ‘just drive.’ ”

Judge Lussman had agreed to let Stavros out on a substantial bail. However, he’d insisted that Stavros remain at his residence and that his movements be monitored with an electronic bracelet. If Stavros left his home, a signal would be sent via the telephone line to an officer with the probation department.

Hell, even Martha Stewart probably knows how to get around electronic monitoring devices, Guma groused. But there was nothing else he could do.

As Guma checked his notes one last time at the lectern, Karp looked down at the prosecution table. The calm before the storm, he thought. The witness the press has been falling all over themselves to interview with no success.

They’d made a decision to call Zachary to the stand immediately following Guma’s opening, which had kept the jurors riveted with their eyes following his every movement, many of them taking notes. All good signs.

The thought was that instead of saving Zachary for the emotional impact wrapping up the state’s case would have had, they would present his testimony as it fit into the chronology of events. After he testified about his childhood memory, he’d be followed by former detective Bassaline to describe the original efforts to investigate Teresa Stavros’s disappearance, including his interview with the now-accused gardener, Jeff Kaplan. Detective Fairbrother would then be called to describe the subsequent cold case investigation, taking particular care to note that the false credit card statements and reported “sightings” had all been part of an elaborate scheme-with emphasis on the idea that it was unlikely that a punchy ex-fighter-turned-gardener was able to pull it off.

At that point, Drs. Swanburg and Gates would be called to the stand to describe their roles in the discovery and identification of Teresa Stavros’s body. Then Fairbrother would be recalled to testify about the subsequent arrest of Emil Stavros in upstate New York. Unfortunately for the defense, Judge Lussman had ruled in the prosecution’s favor to allow the defendant’s flight north to be brought into evidence as something the jury could weigh regarding his consciousness of guilt.

If Zachary Stavros had wrapped up the case, Karp and Guma decided, it would put too much emphasis on the questionable science of recalling repressed memories, which the defense was sure to attack. Instead, his recollections told in the proper chronology would simply be a small piece of the overall puzzle that would be reinforced with the remaining testimony.

“Good morning, Mr. Stavros…Zachary,” Guma said. “Would you please tell the jury how you are related to the defendant and the deceased in this case?”

Karp glanced at a photograph Guma had left on the prosecution table next to his yellow legal pad. In it, Teresa Stavros and her son were playing in the surf at Fire Island. Teresa looked beautiful in a loose sweater with her hair pulled back, but it was the adoring smile of the boy as he looked up at her that caught the eye. Now, that’s love, Karp thought. He was suddenly reminded of Marlene and his own sons, and his heart went out to the young man on the stand.

At an earlier motions hearing, Guma had to fight for the right to show photographs of Teresa Stavros. The defense attorneys had, of course, wailed and gnashed their teeth that photographs were prejudicial and meant to sway jurors with emotion rather than evidence dealing with the actual crime their client was accused of committing. So Lussman had compromised; Guma was allowed to pick a single photograph, and he’d chosen the one on the beach, which he now showed the jurors as a slide on a projection screen.

Guma had prepared Zachary for the photo presentation. But it was immediately clear that Zachary had become overwhelmed while sitting in a courtroom full of people. Notwithstanding the witness preparation, when shown the photo in the antiseptic, staid courtroom setting, Zachary was emotionally impacted.

“Is this a photograph of you and your mother?” Guma asked.

Zachary nodded and reached for a glass of water.

“You’ll have to answer into the microphone,” Judge Lussman said, adding, not unkindly, “my court reporter doesn’t know how to write a gesture.”

Zachary tried to speak but couldn’t clear his throat. He took a drink of water.

Come on, kid, Karp thought. You can do this.

“Yes, that’s my mother and me,” Zachary replied, staring at the photo.

Zachary then lifted his head, glanced over at the jury, and then directly at Guma. The witness prep, perhaps, was starting to kick in.

It was like the first warm breath of spring after a cold winter. Relieved, Karp imagined that he could hear a sigh from the other people in the courtroom, except the defense of course.

Zachary settled into the witness chair and let Guma take him through his testimony. “What’s your earliest memory, Mr. Stavros?”

“The earliest I can remember is lying in my mom’s arms, looking up at her face,” he replied. “I can still see her eyes-green-and feel this silky blue dress or nightshirt she used to wear.”

Karp looked over at Emil Stavros, who was doing a passable imitation of a man hurt to see his son on the witness stand. A man who’d lost the woman he loved, and now also his son.

Guma continued. “Do you remember a night when you saw and heard your mother and father arguing?”

Zachary nodded but quickly added, “Yes, I remember a night when I saw and heard my mother and father arguing.”

“What do you remember about that night?”

“Objection. Your Honor knows what problems I have with this witness’s so-called memories, and I want to make a record of it,” Anderson said from his seat.

“So noted, Mr. Anderson, and overruled,” Lussman replied automatically, then said to Zachary, “You may continue.” The defense objections to the use of Zachary Stavros’s repressed memories had already been taken up in the Daubert hearing with the testimony of forensic psychologists. At that time, Lussman ruled that evidence was sufficiently trustworthy to be weighed by the jury. It would, he said, be up to the defense to cross-examine and counter with their own expert witnesses regarding the reliability of repressed memories. Anderson was just making a record for future appeals and, in the process, casting aspersions on the witness’s testimony, hoping a juror or two might see it his way.

Guma stood by the jury rail, which was an extension of the jury box area directly in front of the jurors. Generally, lawyers placed their notes on the rail during opening and closing arguments and while questioning a witness.

Guma gave Zachary a slight nod to let him know that it was all right to continue. Zachary looked back to the jurors. “I remember having gotten out of bed to get a drink of water when I heard them fighting…. I remember my father slapping my mother-”

“Objection,” Anderson said, shaking his head indignantly.

“Mr. Anderson, the record will reflect your continued objection to this witness’s testimony,” Lussman said. “No need to further interrupt. Please continue.”

“I remember him putting his hands around her throat and…” Zachary swallowed hard but couldn’t quite get the next words out. He reached for the glass of water and knocked it over. “Oh damn,” he said and started to cry. “I’m sorry…sorry.”

“That’s all right,” Guma said. “Take a moment to compose yourself.” When the young man had wiped his eyes and nose, Guma asked, “Ready?”

Zachary nodded his head. “Sorry, yes, I can go on.” He straightened his shoulders, shot a look at his father, and then back to Guma. “My father grabbed my mother by her throat and started to shake her. I remember how angry and mad he was…his face was red and his eyes looked…crazy. He was very loud, and I was very frightened.”

“What happened next?”

“He had her backed up against the wall that led to the patio. She was pulling at his hands.” As he described the scene, Zachary’s hands went up to his neck as if trying to pry invisible hands away. He said something so quietly that the court reporter had to ask him to repeat it. “It seemed like a long time, but she went limp, and he let her fall to the ground.”

“What did he do next?”

“I don’t know,” Zachary replied.

“Just tell us what you recall, please,” Guma asked, though they’d been over the testimony many times before.

“I didn’t see…I don’t remember seeing anything more. The next thing I remember is lying in my bed with my sheet pulled up over my head. I was afraid my father would come for me next.”

Out of the corner of his eye, Karp saw Emil Stavros shake his head and then cover his face with his hand. A Tony Award-winning performance, he thought.

“Is there anything else you can recall from that night?”

Zachary shook his head and quickly added, “At some point I heard two ‘pops’ and later I heard the sound of digging.”

“Digging?”

“Yes, digging…from the backyard. My room was above the yard.”

“Did you get up and go to the window to see who might be digging?”

“No.”

“Why not?”

“I thought my dad might get mad at me if I got out of bed.”

Guma now waded carefully into the area the defense was sure to attack. “Now, are these memories you’ve had since you were a small child?”

“Well, in a way, but I had repressed them.”

“Repressed? How do you mean?”

“Well, as I understand it, sometimes people repress memories of a traumatic event-things that are too scary or bad-especially if they were children when it happened. You lock them away in a safe place in your mind where they can’t hurt you, at least that’s what Dr. Craig says.”

“Who is Dr. Craig?”

“Dr. Craig is my psychologist. I was diagnosed as bipolar-some people call it manic-depressive-to the point where I was cutting myself with razor blades. Some people call that ‘self-mutilation,’ but really it’s more self-injury. It’s almost like releasing the steam from a pressure cooker. I had pretty low self-esteem, hated myself actually…I’d been told most of my life that my mother left me-”

“Yes, we’ll get to that in a moment,” Guma said. “Did your father suggest that you go to Dr. Craig?”

“Well, he tried sending me to a lot of different people. He didn’t want to deal with me. But I think a friend of his recommended that I go see Dr. Craig.

“Anyway, Dr. Craig suggested that he hypnotize me and see if there was anything in my past-repressed memories that might explain some of my psychological problems.”

“And that’s when you recalled this fight between your mother and father…him choking her?”

“Yes…and the pops and digging.” Zachary nodded.

“Do you have a recollection of when this fight occurred?”

“Well, I know that it was right before my mom-” suddenly in tears again, Zachary blurted out the rest of the sentence, “disappeared. My father told me she’d left us because she didn’t want to be a mother anymore.”

“Is that another repressed memory…what your father told you?”

Zachary shook his head. “No. I heard that until I stopped asking what happened to my mother.”

“After that night, did you ever hear from her again?”

Again, Zachary shook his head. “Not directly. I received some Christmas and birthday cards…but obviously, they weren’t real.”

“Objection. The witness is testifying in an area he has no expertise. It has not been established that the cards in question were falsified,” Anderson said.

“Sustained,” the judge said. “The jury will disregard the statement about whether the cards were real or not.”

“Did you ever see your mother again?” Guma asked. “Or hear her voice?”

Zachary bowed his head and sat quietly. It was soon obvious that he was weeping. He shook his head.

Kindly, Judge Lussman said, “Let the record indicate that the witness replied in the negative to the questions asked by the people.”

“Thank you, Your Honor,” Guma said taking his seat. “The people have no further questions.”

Bryce Anderson rose slowly from his chair as his finger traced across the notepad where he’d been writing during Zachary’s testimony. With his tailored suit, handmade ties, and two-hundred-dollar haircuts and hundred-dollar manicures, he almost looked airbrushed. His manner was deliberate, thoughtful as he approached the lectern. He hoped the blonde in the back, who’d finally agreed to dinner at the Tribeca Grill on Friday, was taking note.

For all of his flourishes, however, Anderson was no slacker as an attorney. He knew that he was going to have to tread lightly around Zachary. He was obviously a sympathetic figure on the witness stand.

In his opening, he’d portrayed Teresa and Emil Stavros as having once been very much in love-a love that had produced a fine young boy. However, trying to provide for them, Emil Stavros had worked long hours, and, perhaps, failed to provide the emotional support for his beautiful wife and much-adored son…. The marriage became strained…BOTH parties strayed from their vows of fidelity. Mr. Stavros met a young woman who replaced the love that Teresa was giving now to another man-a former convict who’d served time for manslaughter and been hired to attend the family rose garden but tended another man’s wife instead. A man named Jeff Kaplan.

Anderson had asked the jury to keep an open mind regarding the skeleton found in the Stavros backyard. Remember there is no proof that Emil Stavros killed or buried anyone. In fact, we will present a witness who will tell you that he knows who killed and buried Teresa Stavros-her lover, Jeff Kaplan. However, the prosecution will attempt to sway you with a pseudoscience…a quackery…called “repressed memory recovery,” using the Stavros’s son, a troubled young man if there ever was one, to “prove” the unprovable. But we will present expert witnesses who will tell you that it is far more likely to actually “plant” false memories than it is to recover real ones. It is not the young man’s fault; he lost his much-loved mother and, due to the cruel hoax perpetrated by Mr. Kaplan, who was anxious to loot Teresa’s bank accounts, he was unfortunately led to believe that she had abandoned him and his father.

Anderson smiled sympathetically at Zachary, allowing him time to pull himself together. When the young man looked up, the lawyer inquired, “Are you ready to continue, Zachary?”

“Yes,” the young man answered.

“Fine. I know this is tough, and I’m not here to try to make you suffer more than you already have,” Anderson said. “But a man’s life, your father’s life, is at stake here, so I must ask my questions.”

“I understand.”

“Good. Now, how do we know that what you’ve claimed is a ‘repressed memory’ fourteen years after the fact is the truth?” Anderson asked.

Zachary shrugged. “How do we know any memory is the truth? Two people remember the same thing two different ways even a day later.”

“Thank you for that,” Anderson said, “but that doesn’t really answer my question.”

Zachary sighed. “We don’t. All I can tell you is what I believe to be true.”

“Thank you,” the lawyer continued. “Now, when you ‘recalled’ this memory, were you aware that your mother had been having an affair with a man named Jeff Kaplan?”

“I don’t believe that is true,” Zachary said.

“That wasn’t my question,” Anderson said. “Were you aware she was having an affair?”

“No.”

“Do you remember Mr. Kaplan?”

“I was five years old when my mom disappeared.”

“I take that to mean, ‘no.’ ”

“Yes…no.”

“Thank you,” Anderson said. “Now, Mr. Stavros…Zachary…until you were ‘hypnotized’ by this Dr. Craig, had you ever told anyone about seeing your father choke your mother?”

“No.”

“Or about hearing ‘pops’ or the sound of digging in the backyard?”

“No.”

“Thank you.” Anderson turned, glanced briefly at the blond reporter, and said, “No further questions.”

On redirect, Guma asked Zachary if he’d ever been shown any reports regarding the remains found in the backyard of his father’s house.

“No. I asked, but you said it would have to wait until after the trial.”

“Yes, I did,” Guma said. “Now, is there anything else you remember from that night? For instance, what your mother was wearing?”

It sounded like a simple question, but it was one they’d discussed several times, including the offhand way it was asked.

“I remember that she was wearing a blue dress…or because it was night, I think it might have been a nightshirt. She wore it a lot.”

“Yes.”

“Anything else?”

“No, not really.”

“And you believe that the ‘repressed memories’ you’ve recalled are true?”

“Yes.”

Asked if he wanted to ask any questions for recross, Anderson looked bored and hardly rose out of his seat. “Just a couple, Your Honor,” he said. “Again, Zachary, there is no way of knowing if these ‘repressed memories’ really depict what happened on the night your mother disappeared?”

“I believe they’re real.”

“Or, even if they were real-that what you witnessed of your mother and father having a fight occurred on the night your mother disappeared?”

“I believe they’re real.”

“If these memories are real, it could well be a memory from a month before, or a year. Isn’t that correct?”

“I can only tell you that after that night, I never saw my mother again.”

Zachary stepped down without looking at his father. He wiped at the tears on his face and glanced at Guma, who winked and said quietly, “I’m proud of you.”